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Here we'll explore the nexus of legal rulings, Capitol Hill
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innovation that creates -- and will recreate -- the networked world as we
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May 14, 2008

Does the RIAA Have Legal Legs?

Posted by Alan Wexelblat

I don't blog much about the minutae of the cascade of digital music-related lawsuits in part because there are people who obsessively blog these things and I've lost patience with it over the years. One place that hasn't lost patience and generally does a very good job with the details is Recording Industry vs The People.

Here's a short list of things the RIAA would like us to believe and have (by and large) gotten judges to agree with:

You are not allowed to make MP3 copies of tracks on CDs you legally own

Placing MP3s into a file directory that might be accessed from outside your computer is equivalent to giving away copies

An IP address is equivalent to a personal identifier

There are more, of course, but let's focus on these for a moment as we've further developments to discuss in Atlantic v. Howell, a case I pointed to in December of last year. At that point, there was contention over whether the Cartel were backtracking on the question of whether CD owners have the right to rip their own CDs.

Well now we a judge rejecting the RIAA's motion for summary judgement in the case. If the judge had bought into the RIAA's premises above the case would've been another slam-dunk win for the Cartel. Instead Judge Wake appears to be ready to change his earlier stance and agree with the defendants (and their EFF counsel) that simply placing copies in a directory is not a "distribution". This is key because if there's no distribution then there's no copyright infringement.

Furthermore, there's a good question to be argued as to whether the defendants are even the ones who put that MP3 file there. Such an issue would be settled by a trial, but the RIAA doesn't want trials. Its jihad is based on filing and rapidly settling thousands of these lawsuits. Having them go to trial would prove time-consuming, risky, and expensive even if the Cartel won.

For a large variety of reasons, the Cartel can't afford to wage this war in the court trial dockets. It needs to be conducted in the mass, scalable fashion whereby the threat of the judiciary is used to extort payment from consumers... err, victims... err, named defendants.

Despite the amount of time this case has already dragged out, it's still in the very early stages. As Eric Bangeman pointed out in his ars technica story on the denial, Judge Wake's reasoning is at odds with other judges' decisions on similar issues. For the great majority of cases, the RIAA is being successful in its jihad. My guess is that they'll argue this case a little further to see if Judge Wake can be swayed back. If he continues to rule against them, they'll drop the case before it goes to trial - they have no incentive to get an actual verdict on the books against them and an appeal would be even more expensive. So long as the tide continues to run in their favor, the Cartel can keep going even if it has to drop a case now and then. To truly kick the legs out from under them would require an act of Congress or a decision by a much higher-level court. Neither will happen soon.

I think there's a good argument based on the language of the statute that even actual transmission of a file over the internet (as opposed to merely putting it into a shared folder) is not distribution, because the distribution right applies to "copies or phonorecords," which are defined as material objects. Technically, I think that when you have an mp3 saved to your hard drive, your hard drive and not the file is a "phonorecord" under the terms of the statute.

But I don't think acceptance of this reasoning (which I don't see happening anytime soon) would (or should) destroy the labels' ability to sue for file sharing, as it still involves unauthorized reproduction. If you were to call someone up on the phone and read a book to him so as to enable him to write it down, aren't you participating in an act of reproduction? It seems to me that people who distribute music files to others over p2p networks are likewise engaged in the reproduction of the files in question even though what they are doing does not technically fall within the distribution right.

As for IP addresses, it's true that they are not personal identifiers, but so what? So plaintiffs have to prove by a preponderance that the defendant was actually the one making files available using that IP address. Sometimes they might fail to do so, but I don't think the "a man came in through my window and used Kazaa while I was sleeping" defense is going to hold much water with juries most of the time.

1. One thing that ought to be tried at a jury trial is going for nullification, or at least a hung jury, with a closing argument designed to make any juror that has shared or downloaded music (and there'll be at least three) feel guilty about convicting.

2. Why does the server suddenly slow down exactly when someone submits a comment, then speed right back up again after? It's quite responsive, except when you hit "post" rather than a link, and then suddenly it's heavily loaded at that precise time and takes ages to load the next page! Why would the load spike exactly when someone is *about* to hit a particular button?

3. Why doesn't "Remember Me?" work, and if it's not actually supposed to, why is it there at all?